Douglas v. Astrue

Filing 19

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Acting Commissioner of Social Security Carolyn W. Colvin is substituted for former Commissioner Michael J. Astrue as defendant in this cause. IT IS FURTHER ORDERED that that the decision of the Commissioner is AFFIRMED and plaintiff's Complaint is dismissed with prejudice. Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 9/30/2013. (NCL) Modified docket text on 9/30/2013 (NCL).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHARLOTTE MARIE DOUGLAS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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Case No. 4:12CV814 FRB

MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse determination by the Social Security Administration.
All

matters are pending before the undersigned United States

Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
I.

Procedural History

On December 1, 2006, plaintiff Charlotte Marie Douglas
filed an application for Disability Insurance Benefits pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.; and
an application for Supplemental Security Income pursuant to Title
XVI of the Act, 42 U.S.C. §§ 1381, et seq., in which she claimed
she became disabled on February 11, 2006.

1

(Tr. 214-21, 222-24.)

On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security. Pursuant to Fed. R. Civ. P.
25(d), Carolyn W. Colvin is therefore automatically substituted
for former Commissioner Michael J. Astrue as defendant in this
cause of action.

Upon initial consideration, the Social Security Administration
denied plaintiff’s claims for benefits.
27.)

(Tr. 92, 93, 116-20, 121-

On February 17, 2009, after an administrative hearing, an

Administrative

Law

Judge

(ALJ)

issued

a

partially

favorable

decision, finding plaintiff to be disabled as of August 20, 2007,
but not prior to that date.

(Tr. 94-107.)

On April 12, 2010, upon plaintiff’s request for review of
the ALJ’s decision, the Appeals Council entered an Order remanding
the case to the ALJ instructing the ALJ to clearly articulate the
frequency of stooping allowed and to provide rationale for the
conclusion; to give consideration to the opinion of Dr. Terry Weis
and to explain the weight given to the opinion; to give further
consideration to plaintiff’s maximum residual functional capacity
(RFC); and to obtain evidence from a vocational expert to clarify
the effect of the assessed limitations on plaintiff’s occupational
base.

(Tr. 112-13.)
Upon remand, an additional administrative hearing was

held before an ALJ on August 26, 2010, at which plaintiff and
medical and vocational experts testified. (Tr. 23-41.) On October
15, 2010, the ALJ issued a decision finding that, between February
11, 2006, and August 20, 2007, plaintiff could have performed jobs
as they existed in significant numbers in the national economy and
thus was not under a disability during that period.

(Tr. 11-18.)

On April 2, 2012, the Appeals Council denied plaintiff’s request

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for review of the ALJ’s decision.

(Tr. 1-5.)

The ALJ’s October

2010 decision is thus the final decision of the Commissioner.

42

U.S.C. § 405(g).
Plaintiff now seeks judicial review of the Commissioner’s
final decision arguing that it is not based upon substantial
evidence on the record as a whole.

Specifically, plaintiff claims

that the ALJ failed to properly consider the opinion evidence of
plaintiff’s treating physician, Dr. Poetz, resulting in an RFC
determination unsupported by some medical evidence; and improperly
relied upon vocational expert testimony to find plaintiff not
disabled

inasmuch

as

hypothetical question.

the

testimony

was

based

upon

a

flawed

Plaintiff requests that the Commissioner’s

decision be reversed and that she be awarded benefits, or that the
matter be remanded for further proceedings.
Because the ALJ committed no legal error and substantial
evidence on the record as a whole supports the ALJ’s decision, the
Commissioner’s determination that plaintiff was not disabled prior
to August 20, 2007, should be affirmed.
II.
A.

Relevant Testimonial Evidence Before the ALJ

Hearing Held January 13, 2009
At the hearing on January 13, 2009, plaintiff

testified

in response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was fifty-one years
of age.

Plaintiff stood five feet, four inches tall and weighed

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240 pounds. Plaintiff was right-handed. Plaintiff was married but
lived without her husband in her daughter’s house with her daughter
and three minor grandchildren.

Plaintiff had a seventh grade

education and testified that she received no other education.
Plaintiff testified that she currently received food stamps.

(Tr.

47-51.)
Plaintiff’s Work History Report shows that plaintiff
worked as a hotel housekeeper from 1990 to 1993.

From 1997 to

2001, plaintiff worked as a laborer for temporary services.

For

six months in 1999, plaintiff worked as an assembler for a drapery
manufacturer.

From January to August 2001, plaintiff worked as an

engraver at a medical supply company.

From December 2003 to

January 2004, plaintiff worked as a hospital housekeeper.

(Tr.

258.)
Plaintiff

testified

that

she

last

worked

in

2004

babysitting one or two of her grandchildren and that her health was
deteriorating at that time.

Plaintiff testified that she had

difficulty standing and sitting at that time and also experienced
shortness of breath.

(Tr. 55-57.)

Plaintiff testified that she

was unable to work currently because of breathing difficulties and
because of residual effects from a stroke she had in February 2006.
Plaintiff testified that she was paralyzed when she first had the
stroke and continued to have weakness on her right side.

Plaintiff

testified that her right side felt heavy, that she could not lift

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her right arm, that she could not lift or hold anything with her
right arm, and that she walked with a cane using her left hand
because she could not hold the cane with her right hand.

Plaintiff

testified that her right leg used to drag, but that she could now
lift it a little better although she continued to walk with a limp.
(Tr. 67-70.) Plaintiff testified that the stroke also affected her
memory and her speech but that her speech had since improved.
Plaintiff testified that her long term memory remained impaired.
(Tr. 69, 71-72.)
Plaintiff testified that she also suffered from a broken
right ankle for which she underwent surgery for placement of
plates, bolts and screws. Plaintiff testified that she was able to
work after having her ankle surgically repaired.

(Tr. 70.)

Plaintiff testified that she had high blood pressure for
which she took medication.

Plaintiff testified that she did not

believe her condition to be controlled.

(Tr. 70.)

Plaintiff testified that she also had diabetes which was
controlled with medication.

(Tr. 71.)

Plaintiff testified that she had hepatitis C but never
received treatment for the condition.

(Tr. 75.)

Plaintiff testified that she fell in the early 1990's and
injured her back and continued to have problems with arthritis in
her back.

Plaintiff testified that she was in constant pain.

53.)

-5-

(Tr.

Plaintiff testified that she was involved

in

a car

accident in the early 1990's in which her legs were trapped in the
car door when the car struck a tree.

Plaintiff testified that she

could not walk for a long period of time and was currently
scheduled for bilateral knee replacement.

(Tr. 73-74.)

Plaintiff testified that she had blurred vision but could
read some words when wearing eyeglasses.

Plaintiff testified that

she no longer had the physical ability to write because of her
right-sided weakness and could not write with her left hand.
Plaintiff testified that she could make change at a grocery store.
(Tr. 49-50.)
Plaintiff

testified

that

she

takes

hydrocodone

and

ibuprofen for pain but that she continues to feel the pain.
Plaintiff

testified

that

her

medication

makes

her

sleepy.

Plaintiff testified that she only experiences side effects from her
other medications if she does not eat.

(Tr. 76-77.)

As to her exertional abilities, plaintiff testified that
she had difficulty standing up and difficulty walking on account of
her back pain and arthritis.

Plaintiff testified that she also

gets out of breath when walking.

Plaintiff testified that she

mostly sits so she does not have to move around too much and
breathe too hard.

(Tr. 76.)

As to her daily activities, plaintiff testified that all
she does during the day is sit and gets up only to go to the

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bathroom or to get something to drink.

Plaintiff testified that

her grandchildren feed her in the morning before they go to school
and that she does not eat anything until they come home.

Plaintiff

testified that she does no housework. Plaintiff testified that her
grandchildren help to take care of her by bringing her food and her
medications and by helping her get dressed.
that she does not have a driver’s license.
B.

Plaintiff testified
(Tr. 52, 78-79.)

Hearing Held August 26, 2010
1.

Plaintiff’s Testimony
At the hearing held August 26, 2010, plaintiff testified

in response to questions posed by counsel.
Plaintiff testified that she suffered a stroke and heart
attack in February 2006 and experienced paralysis at the time.
Plaintiff

testified

that

she

gradually

became

stronger

but

continued to experience weakness. Plaintiff testified that she has
not been able to work since February 2006 because of shortness of
breath, an inability to stand due to pain and arthritis in her
back, and pain in her knees.

(Tr. 27-28.)

Plaintiff testified that she weighed around 200 pounds
when she had the heart attack in 2006 and that she has gained
weight since then because of her inability to get around.

(Tr.

29.)
2.

Testimony of Medical Expert
Dr. Morris Alex, a medical expert, testified at the

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hearing in response to questions posed by the ALJ and counsel.
Dr. Alex testified that, for the period between February
2006 and August 2007, the medical record showed plaintiff to suffer
from

chronic

obstructive

pulmonary

disease

(COPD),

cerebral

vascular accident (CVA), and upper and lower extremity weakness but
that such conditions did not meet or equal a listed impairment.
Dr. Alex also testified that the record showed evidence of left
knee pain during the relevant period, but not of listing level
severity.

Dr.

Alex

testified

that

there

was

evidence

of

a

myocardial infarct which happened prior to the relevant period, but
that

there

was

no

evidence

in

the

record

demonstrating

plaintiff had any limitations on account thereof.

that

(Tr. 31-33.)

Dr. Alex testified that, based on the medical record,
plaintiff would be limited to sedentary work during the relevant
period.

Dr. Alex testified that plaintiff would be unable to

engage in repetitive stooping or bending, but could occasionally
engage in such activity.

Dr. Alex also testified that plaintiff’s

COPD, coupled with her smoking during the relevant period, would
limit her from being in areas with excessive heat and cold, high
humidity,

and

noxious

fumes.

Dr.

Alex

testified

that

there

appeared to be no evidentiary basis to support Dr. Poetz’s opinion
that plaintiff would be absent from work three times each month,
but testified that the remaining conclusions reached by Dr. Poetz
were reasonable based on the record.

-8-

(Tr. 33-35.)

3.

Testimony of Vocational Expert
Delores Gonzales, a vocational expert, testified at the

hearing in response to questions posed by the ALJ and counsel.
Ms. Gonzales characterized plaintiff’s past work as a
hospital

housekeeper

as

medium

and

unskilled;

as

a

hotel

housekeeper as light and unskilled; as a punch press operator as
medium and semi-skilled; as an engraver as sedentary and semiskilled; and as a drapery assembler as light and semi-skilled.
(Tr. 38.)
The

ALJ

asked

Ms.

Gonzales

to

assume

a

person

of

plaintiff’s education, training, and work experience at the time of
the alleged onset of disability and to further assume the person to
be limited to light work with a sit/stand option and the ability to
change positions frequently. The ALJ asked Ms. Gonzales to further
assume the person to be able to occasionally climb stairs and ramps
but to never be able to climb ropes, ladders, or scaffolds.

The

ALJ asked Ms. Gonzales to further assume that the person could
occasionally stoop, kneel, and crouch but could never crawl.
Finally, the ALJ asked Ms. Gonzales to further assume that the
person must avoid concentrated exposures to extreme cold, extreme
heat, wetness, fumes, odors, dust, and gas. Ms. Gonzales testified
that such a person could not perform any of plaintiff’s past
relevant work but that she could perform other work as an order
caller, of which 35,230 such jobs existed in the St. Louis area and

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2,906,600 nationally; and a ticket taker, of which 1,620 such jobs
existed in the St. Louis area and 106,570 nationally.

(Tr. 39.)

The ALJ then asked Ms. Gonzales to consider the same
individual from the first hypothetical but that such person was
limited to sedentary work.

Ms. Gonzales testified that such a

person could perform work as an information clerk, of which 9,990
such jobs existed in the St. Louis area and 1,112,350 nationally;
and order clerk, of which 2,540 existed in the St. Louis area and
264,520 nationally.

(Tr. 40.)

Finally, the ALJ asked Ms. Gonzales to consider the same
individual from the second hypothetical but that such person would
need two breaks in addition to her lunch break and other permitted
breaks because of fatigue. Ms. Gonzales testified that there would
be no jobs available for such a person.

(Tr. 40.)

In response to questions posed by counsel, Ms. Gonzales
testified that a person who could not stay on task for two hours
could not perform the jobs as previously described.

Ms. Gonzales

also testified that missing three days a month would be more than
most employers would tolerate.
III.
While

(Tr. 40-41.)

Relevant Medical Evidence Before the ALJ
incarcerated

on

March

20,

2005,

plaintiff

complained to Corrections Medicine that she experienced sharp chest
pain at a level ten on a scale of one to ten.
transported to St. Joseph’s Hospital.

- 10 -

Plaintiff was

It was noted that plaintiff

had a myocardial infarction five years prior.
prescribed Clonidine.

Plaintiff was

(Tr. 300-02.)

Plaintiff was admitted to the emergency room at St.
Mary’s Health Center on February 12, 2006, with complaints of
weakness in her right arm and leg.
or facial droop.

Plaintiff denied any dysphasia

Plaintiff left the hospital less than two hours

later against medical advice.

(Tr. 306-07.)

Plaintiff was admitted to the emergency department at
Christian Hospital Northeast on February 17, 2006, with complaints
of

dizziness,

nausea,

vomiting,

lightheadedness,

and

muscle

weakness. Plaintiff reported having chest pain earlier in the day.
Plaintiff appeared to be in no apparent distress.

Plaintiff

reported having had a stroke and that she had been released from
the hospital the previous day.

Plaintiff’s medications were noted

to include Norvasc, aspirin,

and Motrin.

smoking two packs of cigarettes a day.

Plaintiff reported

Physical examination and

diagnostic testing yielded essentially normal results.
of the brain showed small old left parietal infarct.

A CT scan

Plaintiff was

discharged that same date in satisfactory condition. Plaintiff was
prescribed Antivert for dizziness.

(Tr. 319-39.)

Plaintiff visited Dr. Robert P. Poetz on February 27,
2006, for follow up of stroke. Plaintiff also complained of having
a cough for over a month.

It was noted that plaintiff had a

history of hypertension and myocardial infarction two to three

- 11 -

years prior and was seeking disability and food stamps.
also currently complained of blurred vision.
to smoke.

Plaintiff

Plaintiff was noted

Examination showed plaintiff to walk with a shuffling

gait and to have decreased strength on the right side of her body
with both upper and lower extremities.

No active motion was

detected. Passive motion was intact. Plaintiff was diagnosed with
CVA, right hemiparesis, and bronchitis.

Laboratory testing was

ordered and Nicoderm patches were prescribed.
provided a cane and an off-work pass.

Plaintiff was

Pulmonary function testing

performed that same date showed moderately severe restriction and
very mild obstruction, but with nineteen percent improvement with
a bronchodilator.

(Tr. 346, 347.)

Plaintiff returned to Dr. Poetz on April 3, 2006, and
complained of having vertigo for one and a half months.

Plaintiff

admitted to not receiving treatment for the condition.

Plaintiff

also complained of weakness associated with heavy menses and stress
incontinence symptoms since her stroke.

Dr. Poetz noted plaintiff

to have weakness in her right upper extremity.

Plaintiff was

unable to shrug with her right shoulder and plaintiff’s left
patellar deep tendon reflex was noted to be absent.

Dr. Poetz also

noted plaintiff to have weakness in her right lower extremity.
Plaintiff was diagnosed with, inter alia, atherosclerosis, diabetes
mellitus II, and acute bronchitis.
and Amoxicillin were prescribed.

Actoplus Met, Zocor, Diovan,

(Tr. 345.)

- 12 -

Plaintiff visited Dr. Poetz on October 17, 2006, with
complaints

of

shortness

of

breath.

Plaintiff

reported

the

condition to have worsened three weeks prior and that she had no
energy.

Plaintiff reported that she awakens two times a night

because of shortness of breath.
in her right knee.

Plaintiff also complained of pain

Plaintiff reported having had the pain since

her stroke in February 2006, but that the pain had worsened.
Plaintiff also complained of pain on the right side of her chest.
Plaintiff reported that she does not check her blood sugar level
and that she stopped taking her medications.

Dr. Poetz diagnosed

plaintiff with uncontrolled diabetes mellitus and bronchitis, noncompliant.

Plaintiff was prescribed Augmentin and Mucinex and was

instructed to return in two weeks.

(Tr. 343.)

Plaintiff visited Dr. Poetz on February 2, 2007, with
complaints of left knee pain, heaviness in the chest, and numbness
in the right arm.

It was noted that plaintiff had run out of

medications three weeks prior.
pain,

COPD,

urinary

tract

Plaintiff was diagnosed with chest

infection,

and

disorder (GAD) with anxiety and depression.

generalized

anxiety

Advair, Cipro, and

Lexapro were prescribed and diagnostic testing was ordered.
390.)

(Tr.

Pulmonary function testing performed that same date showed

improvement over testing previously performed in February 2006.
Current results showed moderate restriction but with eleven percent
improvement with a bronchodilator.

- 13 -

(Tr. 347, 391.)

Plaintiff returned to Dr. Poetz on February 5, 2007, and
complained of shortness of breath.
to help relieve the condition.

Plaintiff requested medication

It was noted that plaintiff had not

been taking her medication for GAD.

Physical examination showed

wheezing as well as pain in the left CVA.

Plaintiff was diagnosed

with COPD, anxiety, and urinary tract infection.

Plaintiff was

prescribed Celexa and was instructed to stop smoking.

(Tr. 393.)

Plaintiff returned to Dr. Poetz on February 8, 2007, and
complained of recent onset of left flank pain.
prescribed.

Darvocet was

(Tr. 395.)

On May 15, 2007, plaintiff reported to Dr. Poetz’s office
that she continued to have left knee pain and that her left flank
pain was worsening.

Plaintiff also reported constant shortness of

breath, tightness in her chest, cough, and incontinence with cough.
It was noted that plaintiff used a cane to walk.
that plaintiff was not taking her Advair.
of breath was noted upon examination.
motion

about

the

knees.

Plaintiff

It was also noted

Wheezing and shortness

Plaintiff had full range of
was

diagnosed

with

COPD,

hemiparesis, diabetes mellitus II, hyperlipidemia, and depression.
It was noted that plaintiff was not compliant with her medication
regimen.

Plaintiff was instructed to restart Advair and to return

in three months for follow up.

(Tr. 396.)

Plaintiff returned to Dr. Poetz’s office on September 25,
2007, for follow up.

Plaintiff reported continued pain in her left

- 14 -

knee,

and

it

was

noted

that

the

knee

was

Plaintiff also complained of right knee pain.
that oxycodone helped.

markedly

swollen.

Plaintiff reported

Plaintiff requested that she be provided a

note that she needed to rest her knees.

Plaintiff also reported

constant coughing and continued shortness of breath, exacerbated
with movement.

Plaintiff also reported having tightness in the

center

chest.

of

especially

her
with

Plaintiff

coughing.

reported

Plaintiff

prescribed Valium instead of Lexapro.

being

requested

incontinent,
that

she

be

Physical examination showed

wheezing on expiration of all lung fields.

Crepitus was noted on

both knees with pain upon palpation of the left knee.

Plaintiff

was prescribed Serevent, Celexa, Quartuss, Actoplus Met, Zantac,
Diovan, and Motrin.

An MRI of the left knee was ordered.

(Tr.

397.)
An MRI taken of the left knee on October 3, 2007, showed
a tear of the medial meniscus and osteoarthritis, chondromalacia of
the patella.

(Tr. 398.)

Plaintiff

visited

Northland

MidAmerica

Orthopedics

(Northland) on October 22, 2007, with complaints of having pain in
her left knee since October 2006.

Tenderness was noted about the

left knee, and plaintiff had limited range of motion.

Plaintiff

was noted to have an abnormal gait, and McMurray’s test was
positive.

Plaintiff was diagnosed with degenerative joint disease

of the left knee.

(Tr. 362-64.)

- 15 -

Plaintiff

cancelled

Northland on December 5, 2007.
On

a

scheduled

appointment

with

(Tr. 364.)

December 5, 2007, Dr. Poetz’s office noted that

plaintiff was unable to undergo knee surgery because of elevated
blood pressure. Plaintiff was instructed to increase her dosage of
Diovan.

(Tr. 399.)
On January 8, 2008, Dr. Poetz diagnosed plaintiff with

uncontrolled hypertension.

Medication was prescribed.

(Tr. 400.)

Plaintiff reported to Dr. Poetz’s office on January 15,
2008, that she continued to have shortness of breath and urinary
incontinence.

Examination showed crackles in both lungs and pain

in the left lower abdominal quadrant. Plaintiff was diagnosed with
pneumonia/bronchitis and was prescribed Cipro. (Tr. 401.) A chest
x-ray taken that same date was normal.

(Tr. 402.)

On January 15, 2008, Dr. Terry J. Weis noted that x-rays
taken of the left knee in response to plaintiff’s complaints of
progressive pain, decreased range of motion, giving way,
deformity showed marked degenerative arthritis.
replacement was considered.

and

A total knee

(Tr. 366-67.)

On March 7, 2008, Dr. Poetz prescribed Lexapro and Xanax
for plaintiff’s anxiety and depression.

(Tr. 404.)

On March 26, 2008, Dr. Poetz noted that plaintiff was
unable to undergo knee surgery because of elevated blood pressure.
(Tr. 405.)

- 16 -

On April 16, 2008, Dr. Weis noted that plaintiff had been
scheduled to undergo left total knee replacement on November 19,
2007, and March 19 and 26, 2008, but had to reschedule due to her
blood pressure.

(Tr. 368.)

pain in her knee.

Plaintiff continued to complain of

Plaintiff was given a patellar tracking brace.

(Tr. 414.)
Plaintiff was admitted to Depaul Health Center on April
29, 2008, with complaints of intermittent chest pain, dysuria, low
blood pressure, and recent onset of generalized weakness.

It was

noted that plaintiff had shortness of breath associated with COPD
and coughing associated with smoking.

Plaintiff was discharged on

May

with

1,

2008,

and

was

diagnosed

chest

pain,

likely

musculoskeletal; pulmonary nodules; urinary tract infection; mild
renal failure, resolved; dehydration; and COPD.

(Tr. 373-80.

Surgery scheduled May 5, 2008, for left knee replacement
was cancelled due to plaintiff’s elevated blood pressure.

(Tr.

382-83.)
An x-ray of the lumbar spine taken August 16, 2008, in
response

to

plaintiff’s

complaints

degenerative joint disease.
legs was noted to be intact.

of

(Tr. 385.)

hip

pain

showed

mild

Strength in plaintiff’s

Straight leg raising was negative.

It was questioned whether plaintiff’s pain was related to an acute
sepsis condition.

(Tr. 387-88.)

On September 9, 2008, plaintiff complained to Dr. Poetz

- 17 -

of having numbness in her thigh during the previous one and a half
months.

Plaintiff was counseled regarding an increase in her

symptoms due to noncompliance.

Plaintiff was prescribed Xanax.

(Tr. 408.)
Plaintiff complained to Dr. Weis on November 12, 2008,
that she had severe pain in her left knee.

It was noted that

plaintiff had difficulty bearing full weight.

Moderate effusion

and swelling was noted as well as decreased range of motion.
Plaintiff was given Vicodin.

(Tr. 414.)

On December 8, 2008, Dr. Weis noted plaintiff to continue
to suffer from hypertension and marked degenerative arthritis in
her right knee.

It was noted that plaintiff could not sleep at

night and suffered a marked disability.
was scheduled.

Knee replacement surgery

(Tr. 413.)

On January 6, 2009, Dr. Weis completed a Medical Opinion
Regarding Ability To Do Work-Related Activities in which he opined
that, because of her severe degenerative joint disease of the left
knee, plaintiff had the ability to frequently lift less than ten
pounds, could stand and walk less than two hours in an eight-hour
workday, and sit less than two hours in an eight-hour workday.

Dr.

Weis opined that, if plaintiff must periodically change positions,
she could sit for ninety minutes before changing positions, stand
for five minutes before changing positions, and would need to walk
every five minutes for five minutes at a time.

- 18 -

Dr. Weis opined

that plaintiff would need to be able to shift positions at will.
Dr. Weis opined that plaintiff could occasionally twist but could
never stoop, bend, crouch, or climb stairs or ladders.

Dr. Weis

opined that plaintiff’s functioning with her upper extremities was
unaffected by her impairment.

Dr. Weis also opined that plaintiff

had no environmental restrictions.
plaintiff’s

impairment

and/or

Finally, Dr. Weis opined that

related

treatment

would

cause

plaintiff to be absent from work more than three times a month.
(Tr. 416-19.)
On January 8, 2009, Dr. Poetz completed a Pulmonary RFC
Questionnaire in which he reported that plaintiff’s diagnosed
conditions included diabetes mellitus-type II, hypertension, COPD,
increased lipids, anxiety and depression, status post CVA, colon
mass, GAD, and left medial meniscus tear.

Dr. Poetz reported that

plaintiff exhibited symptoms of shortness of breath, rhonchi, chest
tightness, episodic acute bronchitis, fatigue, and coughing.

Dr.

Poetz reported that emotional factors contributed to the severity
of plaintiff’s symptoms and functional limitations.

Dr. Poetz

opined that pain or other symptoms would frequently interfere with
plaintiff’s attention and concentration needed to perform simple
work tasks.

Dr. Poetz opined that plaintiff was capable of

handling low stress jobs, reporting that plaintiff had multiple
physical complaints and depression which indicated difficulty with
increased stress.

It

was noted that plaintiff’s medications

- 19 -

included

Actoplus

Vicodin.

Dr.

drowsiness.

Met,

Poetz

Crestor,

reported

Serevent,

that

Xanax

Diovan,
and

Xanax,

Vicodin

and

caused

Dr. Poetz reported plaintiff’s prognosis to be good.

Dr. Poetz opined that plaintiff could walk less than one city
block, could sit for more than two hours at one time, could stand
for forty-five minutes at one time, and could sit for a total of
six hours and stand/walk for a total of less than two hours in an
eight-hour workday.

Dr. Poetz opined that plaintiff would need to

take unscheduled breaks once or twice a workday in order to sit
quietly for five to ten minutes.
could

frequently

lift

and

Dr. Poetz opined that plaintiff

carry

less

occasionally lift and carry ten pounds.

than

ten

pounds

and

Dr. Poetz opined that

plaintiff could occasionally twist and rarely stoop, but could
never crouch or climb ladders or stairs.

Dr. Poetz opined that

plaintiff should avoid even moderate exposure to extreme cold and
heat and high humidity, and avoid concentrated exposure to wetness.
Dr. Poetz opined that plaintiff would be absent from work about
three days each month on account of her impairment and/or related
treatment.

Dr. Poetz noted that plaintiff smoked and was non-

complaint with her treatment.
Plaintiff
January 19, 2009.

underwent

(Tr. 420-24.)
left

total

knee

replacement

on

(Tr. 412.)
IV.

The ALJ’s Decision

The ALJ found that plaintiff met the special earnings

- 20 -

requirements of the Social Security Act through December 31, 2006.
The ALJ found that plaintiff had not engaged in substantial gainful
activity since the alleged onset date of February 11, 2006.

The

ALJ found plaintiff’s COPD, left knee pain, and residuals of stroke
with right-sided weakness to constitute severe impairments between
February 11, 2006, and August 20, 2007, but that during that time
plaintiff did not have an impairment or combination of impairments
that met or medically equaled a listed impairment in 20 C.F.R. Part
404, Subpt. P, App. 1.

(Tr. 11-15.)

The ALJ determined that

between February 11, 2006, and August 20, 2007, plaintiff had the
RFC to perform sedentary work except
claimant must have a sit, stand option with
the ability to change positions frequently;
claimant can occasionally climb stairs and
ramps, stoop, kneel, or crouch; claimant can
never climb ropes, ladders, or scaffolds or
crawl;
claimant
must
avoid
concentrated
exposure to extreme cold and heat, wetness, or
fumes, odors, dust or gasses.
(Tr. 15.)
The ALJ determined that plaintiff was unable to perform her past
relevant

work

from

February

11,

2006,

to

August

20,

2007.

Considering plaintiff’s age, education, work experience, and RFC
during the relevant period, the ALJ determined vocational expert
testimony to support a finding that there was work existing in
significant numbers in the national economy that plaintiff could
have performed, such as information clerk and order clerk. The ALJ
- 21 -

thus determined plaintiff not to be disabled during the period from
February 11, 2006, to August 20, 2007.
V.

(Tr. 15-18.)

Discussion

To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act, plaintiff must prove that she is disabled.

Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).

The

Social Security Act defines disability as the "inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months."
423(d)(1)(A), 1382c(a)(3)(A).
disabled

"only

if

[her]

42 U.S.C. §§

An individual will be declared

physical

or

mental

impairment

or

impairments are of such severity that [she] is not only unable to
do

[her]

previous

education,

and

work

work

but

cannot,

experience,

engage

considering
in

any

[her]

other

age,

kind

of

substantial gainful work which exists in the national economy." 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To

determine

whether

a

claimant

is

disabled,

Commissioner engages in a five-step evaluation process.

the

See 20

C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987).

The Commissioner begins by deciding whether the claimant

- 22 -

is engaged in substantial gainful activity.
working, disability benefits are denied.
decides

whether

the

claimant

has

a

If the claimant is

Next, the Commissioner
“severe”

impairment

or

combination of impairments, meaning that which significantly limits
her ability to do basic work activities.

If the claimant's

impairment(s) is not severe, then she is not disabled.

The

Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
Appendix 1.

If claimant's impairment(s) is equivalent to one of

the listed impairments, she is conclusively disabled.

At the

fourth step, the Commissioner establishes whether the claimant can
perform her past relevant work.
disabled.

If so, the claimant is not

Finally, the Commissioner evaluates various factors to

determine whether the claimant is capable of performing any other
work in the economy.

If not, the claimant is declared disabled and

becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.

42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

Substantial

evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

Johnson

This “substantial

evidence test,” however, is “more than a mere search of the record

- 23 -

for evidence supporting the Commissioner’s findings.”

Coleman v.

Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).

“Substantial evidence on the record as a

whole . . . requires a more scrutinizing analysis.”

Id. (internal

quotation marks and citations omitted).
To

determine

whether

the

Commissioner's

decision

is

supported by substantial evidence on the record as a whole, the
Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and
consulting physicians.

4.

The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.

5.

Any corroboration by third parties of the
plaintiff's impairments.

6.

The testimony of vocational experts when
required which is based upon a proper
hypothetical question which sets forth
the claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86
(8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).
The Court must also consider any evidence which fairly detracts
from the Commissioner’s decision.

Coleman, 498 F.3d at 770;

Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).

However,

even though two inconsistent conclusions may be drawn from the
- 24 -

evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.

Pearsall, 274 F.3d

at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).

“[I]f there is substantial evidence on the record as a

whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
A.

Opinion Evidence from Dr. Poetz
Plaintiff

claims

that,

while

the

ALJ

evaluated

the

opinion evidence offered by Dr. Weis as ordered by the Appeals
Council, he erred by failing to analyze the opinion evidence
offered by Dr. Poetz. Plaintiff argues that, without consideration
of

Dr.

Poetz’s

opinion,

the

ALJ’s

RFC

determination

is

not

supported by some medical evidence and thus is not supported by
substantial evidence on the record as a whole.
As an initial matter, the undersigned notes that in his
previous decision entered February 17, 2009, the ALJ discussed the
medical evidence of record, including the opinion evidence rendered
by Dr. Weis and Dr. Poetz in January 2009.

(See Tr. 101-02.)

Notably, the Appeals Council ordered the ALJ upon remand to further
consider only that opinion evidence offered by Dr. Weis.

The

Appeals Council Order is silent regarding the ALJ’s analysis of Dr.

- 25 -

Poetz’s opinion.

Nevertheless, for the following reasons, the ALJ

did not err in his analysis of Dr. Poetz’s opinion upon remand, and
plaintiff’s claim otherwise fails.
In his written decision entered October 15, 2010, the ALJ
thoroughly summarized the medical evidence of record relating to
plaintiff’s impairments as they existed between February 11, 2006,
and August 20, 2007.

With respect to Dr. Weis’s January 2009

opinion (which the ALJ was ordered to consider upon remand), the
ALJ determined to accord it little weight inasmuch as it addressed
plaintiff’s limitations as they existed at the time Dr. Weis
rendered the opinion, that is, in January 2009.

Inasmuch as the

ALJ

of

was

limited

to

considering

the

effects

plaintiff’s

impairments as they existed prior to August 20, 2007, the ALJ did
not err in according limited weight to the January 2009 opinion of
Dr. Weis.

See Freeman v. Apfel, 208 F.3d 687, 691 (8th Cir. 2000).

Plaintiff

does

not

challenge

the

weight

accorded

Dr.

Weis’s

opinion.
Dr. Poetz’s opinion evidence gives rise to the same
circumstance.

Dr. Poetz’s opinion as to plaintiff’s pulmonary

functioning was rendered in January 2009 and addressed plaintiff’s
limitations as they existed at that time, when plaintiff was
undisputably disabled.

In contrast, as noted by the ALJ, evidence

from the relevant period shows that plaintiff was continuously noncompliant with her treatment regimen as directed by her physician

- 26 -

and

that

her

treatment.

pulmonary

condition

would

have

improved

with

Indeed, as noted by the ALJ, the plaintiff disregarded

her treatment regimen almost in its entirety during the relevant
period.
First, the ALJ noted that despite plaintiff’s complaints
of stroke-like symptoms in February 2006, plaintiff left the
emergency department at St. Mary’s Health Center against medical
advice.

In addition, the ALJ noted Dr. Poetz to have observed in

October 2006 that plaintiff failed to check her blood sugar levels
as required for her diagnosed condition of diabetes mellitus and
that plaintiff stopped taking her medications.

The ALJ also noted

that plaintiff allowed her medications to run out in February 2007
for

three

weeks

and

reported

to

Dr.

Poetz

at

a

subsequent

appointment in February 2007 that she was not taking her prescribed
medication.

Finally, the ALJ noted that plaintiff reported again

to Dr. Poetz in May 2007 that she was not taking her prescribed
medication, including Advair.

Further, plaintiff continued to

smoke throughout this period despite repeated instruction to quit.
The ALJ aptly summarized:
The
claimant
had
a
real
problem
with
compliance during the period in issue.
She
left a hospital against medical advice, she
had treatment gaps, and she did not take her
prescribed medications on numerous occasions.
Dr. Poetz repeatedly noted the claimant’s noncompliance. He reported it again in January
2009.

- 27 -

. . .
The claimant has COPD, but does not comply
with treatment. . . . Further, the claimant
was a 2 pack per day smoker during the period
at issue herein despite being told by Dr.
Poetz to stop smoking.
(Tr. 16.)

(Citation to record omitted.)
An ALJ does not err in giving less than controlling

weight to

a

treating physician’s opinion of disability where

substantial evidence on the record shows the claimant to have been
noncompliant with prescribed treatment without good reason.
v. Barnhart, 390 F.3d 535, 540-51 (8th Cir. 2004).

Brown

Plaintiff does

not contend that good reason existed for her failure to comply with
prescribed treatment, nor does a review of the record reveal any.
Instead, plaintiff argues that the ALJ should not have considered
plaintiff’s noncompliance inasmuch as he failed to examine whether
the prescribed treatment would have restored plaintiff’s ability to
work or would have sufficiently improved her condition, as required
by the Regulations.

Plaintiff’s argument is misplaced.

Before a claimant is denied benefits because of a failure
to follow a prescribed course of treatment, an inquiry must be made
on the basis of evidence in the record as to whether such treatment
would restore the claimant’s ability to work or sufficiently
improve her condition.

Burnside v. Apfel, 223 F.3d 840, 843-44

(8th Cir. 2000); 20 C.F.R. §§ 404.1530(a), 416.930(a).

Here,

contrary to plaintiff’s argument, a review of the ALJ’s decision
- 28 -

shows him to have indeed considered whether plaintiff would have
experienced sufficient medical improvement had she complied with
her prescribed treatment.

As noted by the ALJ, diagnostic testing

showed plaintiff’s pulmonary functioning to have improved by ten to
nearly twenty percent with administration of bronchodilators, but
that plaintiff did not use or take her medications, including
Advair, despite their prescribed use by her doctors.

(Tr. 14, 16.)

Impairments that are controllable or amenable to treatment do not
support a finding of disability.

Roth v. Shalala, 45 F.3d 279, 282

(8th Cir. 1995).
In addition, the ALJ’s finding of nondisability was not
made solely because of plaintiff’s noncompliance with prescribed
treatment.

Instead, a review of the ALJ’s decision in toto shows

him to have considered all of the objective medical evidence of
record which demonstrated that plaintiff’s impairments were not
disabling.
complaints

The ALJ further considered plaintiff’s subjective
and

found

them

not

to

be

credible

to

the

extent

plaintiff claimed her impairments rendered her disabled during the
relevant time.2

Finally, as noted above, the ALJ considered the

demonstrated improvement of plaintiff’s pulmonary condition with
appropriate treatment.

As such, because a review of the ALJ’s

decision shows him to have considered the entirety of the record in

2

Plaintiff does not challenge the ALJ’s credibility
determination.
- 29 -

determining plaintiff’s disability, he was not precluded from
considering plaintiff’s noncompliance with prescribed treatment as
a factor in determining the weight accorded to Dr. Poetz’s opinion.
Accordingly, because Dr. Poetz’s January 2009 opinion did
not pertain to plaintiff’s condition during the relevant period and
was inconsistent with other evidence relating to said period, the
ALJ did not err in giving Dr. Poetz’s opinion limited weight.

See

Freeman v. Apfel, 208 F.3d 687, 691 (8th Cir. 2000); see also
Phillips v. Colvin, 721 F.3d 623, 629 (8th Cir. 2013) (duty of the
Commissioner to resolve conflicts in the evidence).
Nevertheless, a review of the ALJ’s RFC determination
shows it to contain significant functional limitations, including
environmental restrictions and a limitation to sedentary work.
Such

limitations

appear

described by Dr. Poetz.

to

be

largely

consistent

with

those

It cannot be said, therefore, that the ALJ

wholly failed to consider the opinion of Dr. Poetz or that the RFC
determination is not supported by some medical evidence.

See

Martise v. Astrue, 641 F.3d 909, 926 (8th Cir. 2011); Ellis v.
Barnhart, 392 F.3d 988, 994 (8th Cir. 2005).

An ALJ is “not

required to rely entirely on a particular physician’s opinion or
choose between the opinions [of] any of the claimant’s physicians.”
Martise, 641 F.3d at 927 (internal quotation marks and citation
omitted).

Instead, the ALJ must determine a claimant’s RFC based

on his review of the record as a whole.

- 30 -

The ALJ did so here.

B.

Hypothetical Posed to Vocational Expert
Plaintiff contends that the ALJ erred by relying on

vocational expert testimony to find plaintiff not disabled inasmuch
as the hypothetical question upon which such testimony was based
failed to include all of plaintiff’s limitations.

Specifically,

plaintiff argues that the vocational expert should have considered
those limitations included by Dr. Poetz in his January 2009 report
that

plaintiff’s

pain

and

symptoms

would

cause

frequent

interruptions of plaintiff’s attention and concentration, and that
plaintiff would be absent from work three days each month on
account of her impairments.
As noted above, the ALJ did not err in failing to accord
controlling weight to Dr. Poetz’s January 2009 report. Nor did the
ALJ err in failing to adopt the entirety of the limitations set out
therein.

As such, it was not error for the ALJ not to include all

of Dr. Poetz’s opined limitations in the hypothetical question
See Ellis, 392 F.3d at 997;

posed to the vocational expert.
Pearsall, 274 F.3d at 1220.
VI.

Conclusion

For the reasons set out above on the claims raised by
plaintiff on this appeal, the ALJ’s determination is supported by
substantial evidence on the record as a whole and plaintiff’s
claims of error should be denied.

Inasmuch as there is substantial

evidence to support the Commissioner's decision, this Court may not

- 31 -

reverse the decision merely because substantial evidence exists in
the record that would have supported a contrary outcome or because
another court could have decided the case differently.

Gowell v.

Apfel, 242 F.3d 793, 796 (8th Cir. 2001); Browning v. Sullivan, 958
F.2d 817, 821 (8th Cir. 1992).

Accordingly, because there is

substantial evidence on the record as a whole to support the ALJ's
decision, the Commissioner's determination that plaintiff was not
under a disability from February 11, 2006, to August 20, 2007,
should be affirmed.
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that Acting Commissioner of Social
Security Carolyn W. Colvin is substituted for former Commissioner
Michael J. Astrue as defendant in this cause.
IT IS FURTHER ORDERED that that the decision of the
Commissioner is AFFIRMED and plaintiff's Complaint is dismissed
with prejudice.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

30th

day of September, 2013.

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